Nurses: State’s proposal on overtime ban too lax

Hearing set for this morning in Boston

GREENFIELD — A new statewide ban on mandatory overtime for nurses will allow for exceptions in dire cases like a natural disaster or terrorist attack but not in situations caused by holes in staffing schedules, a state agency is proposing.

But because hospital officials across the state would have the power to classify a scenario as a “catastrophic event” or “patient care emergency,” local nurses fear that hospitals will continue to force nurses to work overtime as a strategy to keep staffing levels low.

The Health Policy Commission — the agency charged with creating guidelines and procedures about the state’s new health care reform law, including the mandatory overtime ban — is holding a public hearing on its proposal this morning at the Statehouse. A handful of Baystate Franklin Medical Center nurses will attend.

“Unless things are in black and white and are really, really clear, the hospital will look for any loophole to take advantage of the staffing situation,” said Donna Stern, co-chair of the local nurses union. “We feel that the only emergency should be declared (by the) federal, state or local (government).”

Baystate Franklin officials are not planning on attending the hearing, said hospital spokeswoman Amy Swisher.

“Since these guidelines are still a work in progress, we have no comment to make on the specifics at this time,” she said.

Signed into law last summer, the ban prevents a hospital from forcing its nurses to work overtime — a clause included to reduce medical errors, which state officials say sometimes occur when nurses are tired and working beyond eight- or 12-hour shifts.

The law allows for an exception during an “emergency situation,” but left it up to the Health Policy Commission to define what constitutes an emergency.

The agency is proposing that there are three appropriate “emergency situations” where hospitals can force nurses to continue work beyond their regular-scheduled shifts: a declaration of emergency from any level of government, a “catastrophic event” and a “patient care emergency.”

A catastrophic event, as defined by the agency, is “an unforeseen event that substantially affects or increases the need for health care services.” The hospital’s chief executive officer can determine a situation a catastrophic event and enforce mandatory overtime, the agency is proposing.

Examples include a natural disaster, an act of terrorism, an extended power outage, fires, multiple automobile accidents, chemical spills, a widespread outbreak of disease or a riot within the hospital.

The agency is also proposing that the hospital’s chief executive officer can make a determination of a patient care emergency — defined by the agency as “a situation that is unforeseen and could not be prudently planned for or anticipated by the hospital, and that requires the continued presence of a nurse to provide safe patient care.”

The agency provided the example of a surgical procedure in which a nurse is actively engaged and needs to continue working to ensure the health and safety of the patient.

But the agency said that the hospitals will not be able to use the patient care emergency clause for “a situation that is the result of routine staffing needs” — such as holes in the schedule or absences caused by nurses that have been approved for sick time. One of the goals of the law, the agency said, was to stop hospitals from using mandatory overtime as a staffing strategy.

The agency is proposing a number of alternative steps hospital can take to fill absences voluntarily — such as establishing an “on-call list” of nurses who may be available to volunteer for unexpected vacancies.

The overtime issue has divided Baystate Franklin’s administrators and nurses, and continues to be the sticking point in their now 19-month contract dispute. The state agency’s proposal says nothing about the overtime pay structure, which would be determined in local contracts.